Constitutionality of the Attorney General’s Removal

Questions have been asked as to whether the Prime Minister could terminate the Attorney General’s appointment without convening a tribunal similar to the one required to sack a Judge.

The answer is yes, apparently he can.

The question was asked because of the curious wording of clause (6) of Article 145 of the Constitution.

Clause (1) provides that the Attorney General must be “qualified to be a judge of the Federal Court” before he can be appointed as such.

Clause (5) says that

“(5) Subject to Clause (6), the Attorney General shall hold office during the pleasure of the Yang di-Pertuan Agong and may at any time resign his office and, unless he is a member of the Cabinet, shall receive such remuneration as the Yang di-Pertuan Agong may determine.”

[Emphasis supplied]

The curiosity is clause (6) which provides as follows:

“(6) The person holding the office of Attorney General immediately prior to the coming into operation of this Article shall continue to hold the office on terms and conditions not less favourable than those applicable to him immediately before such coming into operation and shall not be removed from office except on the like grounds and in the like manner as a judge of the Federal Court.”

The eagle eyed reader will note that clause (6) on its face applies to the one person who occupied the position of Attorney General “prior to the coming into operation of this Article”.

Some have argued that the second part of clause (6) should be read separately (in legalese, “disjunctively”) from its earlier part.

This seems like a bit of a stretch. All becomes clear when one delves into a bit of constitutional history, specifically that of Article 145.

That Article, as it now stands, was in fact inserted into the Constitution in 1960 (by Act 10/1960) and came into operation on September 16, 1963. The person who occupied the position of the Attorney General in 1960, and remained there until 1963, was Cecil M Sheridan.

(They apparently waited 3 years to bring this amendment into operation. Readers keenly aware of Malaysian history (or at least those keeping tabs on our public holidays) would recognize that September 16, 1963 was also Malaysia Day: the day when Sabah, Sarawak and (for a brief period) Singapore joined forces with the Persekutuan Tanah Melayu to form Malaysia.)

Previously, Article 145(5) provided that the Attorney General “shall not be removed from office except on the like grounds and in the like manner as a judge of the Federal Court”, and restricted appointment of the Attorney General to judicial and legal service officers.

In “The Office of Attorney-General, Malaysia” [1977] 2 MLJ ms xvi, the first Malayan Attorney General Abdul Kadir bin Yusoff (who served as AG from 1963 to 1977) explained the history behind the original clause. Many had debated whether the Attorney General ought to be a political appointment or a professional one. The Reid Commission eventually came to the view that the Attorney General ought to be a professional appointee rather than a political one, and that was the agreed position with some minor modifications. The Government White Paper explaining the draft Constitution of Malaya said that

“It is essential that, in discharging his duties, the Attorney-General should act in an impartial and quasi-judicial spirit. A clause has therefore been included to safeguard the Attorney-General’s position by providing that he shall not be removed from office except on the like grounds and in the like manner as a Judge of the Supreme Court.”

That provision was the original Article 145(5), since replaced by our current version.

The Explanatory Statement to Act 10/1960 (that amended Article 145) said the reason for the wholesale amendment of Article 145 was to give “greater latitude” to the appointment of the Attorney General. Kadir Yusoff surmises two reasons for this change: the desirability to have “the most suitable person available for the performance of the onerous tasks” of the office of Attorney General, regardless of whether that person was from the public service or not; and the impartiality of a political appointee could be assured by conferring on him “untrammelled constitutional discretion” (the logic of which I cannot quite see) [Id., at ms xix].

Kadir Yusoff, a lawyer and politician in 1960, was immediately appointed Attorney General upon coming into force of the new Article 145, which could not have happened under the previous version.

Be that as it may, given that Attorney Generals could be politicians, their security of tenure akin to those of a Judge was obviously no longer considered necessary. Kadir Yusoff points out rather blandly that this “rigidity” was no longer considered “functionally necessary or desirable” (Id., at ms xxi). However, and I am surmising here, Sheridan’s position as the sitting Attorney General could not be jeapordized, and he should not be considered as being subjected to the new law retroactively. Hence, I surmise, the need for Article 145(6).

The question really arises now because under Malaysian law, the Attorney General has sole discretion to determine whether to prosecute a person for a criminal charge. Other countries have separated the function of the Office of Public Prosecutor and vested that power in an independent body. It is high time for Malaysia to follow suit.

Shanmuga K sometimes sees a purple banana emerging in his sub-conscious. An article seems to then be magically written. He is @shanmuga_k on Twitter. When he does not see those purple bananas, he practices as a lawyer at www.kanesalingam.com

Posted on 28 July 2015.
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13 Responses to Constitutionality of the Attorney General’s Removal

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The effect of the new clause (5) is to make the AG hold office at the pleasure of the Agong, like members of the Cabinet other than the PM. The purpose new clause (6), when read together with clause (5) is solely to safeguard the tenure of the incumbent Attorney General, Mr Sheridan, a career legal officer, who was appointed under the old Article 145, only. It should, for clarity, have read "prior to the coming into operation of this _clause_" rather than "Article", since the Article came into force in 1957 when Mr Sheridan was only Solicitor-General. –

This is an untenable analysis. To interpret in such a manner will render article 145(6) nugatory because article 145(6) only protects the incumbent a-g before the new article 145(6) came into force. The outcome of such interpretation enhances the effects of article 145(5) by diminishing article 145(6). It goes against the rule of harmonious construction and assume that article 145(6) does not carry any important functions (considering that this analysis argues that article 145(6) only protects the tenure of the incumbent a-g before it came into effect and the incumbent a-g indeed left after the amendment.) the author of this analysis of course cannot understand why the explanatory note mentions that a-g enjoys untrammeled discretion. If we were to follow this analysis, the government would be able to remove any a-g at any time without constitutional guarantees and procedures like all other public servants. The notion that a-g enjoys untrammeled discretion can only come into existence through proper constitutional safeguards. With due respect, this author presents his analysis based on literal interpretation (which is not really convincing and can easily lead to the opposite conclusion) under the guise of purposive approach. Unfortunately, weaving a few paragraphs from a well-written article and citing the original provisions do not turn this piece of writing to become a germ.

Couldn't agree more with this comment. There is a few add on that i would like to add. Art 132 has provided some definition of public servants and ag is not one of them per art 132(4). Thus the normal way of dismissing public servants can be arguably not applicable for ag. I believe there is a need to distinguish the current issue of ag with Anwar Ibrahim v Perdana Menteri Malaysia as ag is not merely a public servants. Art 145(6) should be look more than just a historically footnote of the event. The parliament would not include it if it doesn't carry any weight.

The meaning of clauses (5) and (6) are clear not only from the ordinary meaning of their words but also from Hansard. The intention in 1960 was to make the Attorney General a political appointee, as he is in England, the USA and many other common law jurisdictions. Of course, in England, the offices of AG and Director of Public Prosecutions are separated, but this was not done in Malaysia.

Under the previous Article 145, the Prime Minister and Cabinet had no say in the appointment or dismissal of the AG. It read as follows:

145. (1) The Yang di-Pertuan Agong shall, after consultation with the Judicial and Legal Service Commission, appoint from among the members of the Judicial and Legal Service an Attorney General, who shall be a person qualified to be judge of the Federal Court.
…
(4) Subject to Clause (5), the Attorney General shall hold office until he attains the age of sixty-five years or such later time, not later than six months after he attains the age, as the Yang di-Pertuan Agong may approve.
(5) The Attorney General may at any time resign his office but shall not be removed from office except on the like grounds and in the like manner as a judge of the Federal Court.”.

The effect of the new clause (5) is to make the AG hold office at the pleasure of the Agong, like members of the Cabinet other than the PM. The purpose new clause (6), when read together with clause (5) is solely to safeguard the tenure of the incumbent Attorney General, Mr Sheridan, a career legal officer, who was appointed under the old Article 145, only. It should, for clarity, have read "prior to the coming into operation of this _clause_" rather than "Article", since the Article came into force in 1957 when Mr Sheridan was only Solicitor-General.

From 1963 onwards, most AGs were, as in England, appointed from the ranks of lawyer MPs from the ruling coalition. Only after Tun Hussein Onn became PM did it again become the norm to appoint a career legal officer as AG.

The issue that cause the confusion is art 145(6). If it is not applicable in any other situation except for protection of Mr Sherdian, why does the parliament kept the art?

Art 145(5) is indeed confusing in a sense, the first part of it, ag shall hold his office at the pleasures of ydpa, but on the second part, if ag came from the cabinet, he shall need to accept the order of ydpa. If it's intended to give the power to dismissals to ydpa(pm), wasn't it should give a more direct language rather than split up the art. From my understanding, if ag come from the cabinet it is not an issue to just dismiss him, other wise you cannot easily dismiss him. Plus art 132. Ag doesn't fall under the normal public servants category which does not require a much more strict procedure to dismiss them. Thus applying art 145(6) which require a tribunal to dismiss ag if he is not coming from the cabinets.

There are many provisions of the Constitution that are spent and no longer have any function. See for instance Art 175:

Director of Audit to be first Auditor General
175. The person holding office as Director of Audit immediately before Merdeka Day shall, as from that day, hold office as Auditor General on terms and conditions not less favourable than those applicable to him immediately before Merdeka Day.

Article 132 was amended at the same time as Art 145, inserting 132(4). The AG cannot be dismissed as a member of the Judicial and Legal Service, but he can be dismissed as AG / Minister of Law. He simply reverts to being an ordinary member of the Judicial and Legal Service.

Thanks for pointing out that we don't have an established norm to make AG a political appointee. On the contrary, the intention of the framer is clear:the a-g should be neutral.the amendment in 1960 doesn't change this position(unless you can quote any paragraphs from the relevant hansard to argue otherwise.). The word 'clause' is totally different from the word 'article'. In the absence of anything to the contrary, we should deduce the meaning of the provision in the ordinary sense, especially such interpretation is supported by records. We also cannot ignore the fact that there are constitutional safeguards and procedures to remove the a-g and such safeguards and procedures should not be crippled by adopting an interpretation that would limit the effects of the constitutional provision when it's not inconsistent with other provisions in the constitution.